THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. Criminal Case No. 09-cr-00389-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. XCEL ENERGY, INC., 2. PUBLIC SERVICE COMPANY OF COLORADO, 3. RPI COATING, INC., 4. PHILIPPE GOUTAGNY, and 5. JAMES THOMPSON, Defendants. RULE 11(c)(1)(A) and (B) PLEA AGREEMENT AND STATEMENT OF FACTS RELEVANT TO SENTENCING The United States of America, by and through John F. Walsh, United States Attorney for the District of Colorado, Jaime A. Pena, Assistant United States Attomey, and the defendant, RPI Coating Inc. by its duly authorized representative Philippe Goutagny and by counsel, Larry Pozner and Dru Nielsen, submit the following Plea Agreement and Statement of Facts Relevant to Sentencing pursuant to D.C.COLO.LCrR 11.1 and Fed. R. Crim. P. 11(¢)(1)(A) and (B). |. PLEA AGREEMENT Defendant RPI Coating, Inc.(sometimes referred to herein as RPI) agrees to plead guilty to Counts One through Count Five of the Indictment respectively charging violations of Title 29 U.S.C. § 666 (Violation of OSHA Regulations Resulting in Death). The Defendant RPI and its representatives agree to execute the necessarydocuments and pleadings necessary to effect this plea agreement, including but not limited to the execution of minutes authorizing this plea agreement, the arraignment of the defendant corporation, and the authorization for a representative to represent the corporation at sentencing. ‘The Defendant further agrees to cooperate with the Government in its investigation and prosecution of any other individuals and entities. The Defendant understands that any recommendation by the Government to the Court is merely a recommendation and the Court will exerci its discretion, within the law, in determining a just sentence. The Government also agrees to move to dismiss the remaining count, Count 6, of the Indictment against this defendant, and the charges against Phillippe Goutagny and James Thompson at the time of the sentencing. The defendant is aware that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Understanding this and in exchange for the concessions made by the government in this agreement, the defendant knowingly and voluntarily waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless the sentence imposed is above the maximum penalty provided in the statute of conviction. Except as provided above, the defendant also knowingly and voluntarily waives the right to appeal the manner in which the sentence is determined on grounds set forth in 18 U.S.C. § 3742 or any ground whatever. The defendant also knowingly and voluntarily waives his right to challenge this prosecution, conviction, or sentence and/or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under 28 U.S.C. § 2255. This waiver provision, however, will not prevent the 2defendant from seeking relief otherwise available if: (1) there is an explicitly retroactive change in the applicable guidelines or sentencing statute, (2) there is a claim that the defendant was denied the effective assistance of counsel, or (3) there is a claim of prosecutorial misconduct. Additionally, if the government appeals the sentence imposed by the Court, the defendant is released from this waiver provision. As part of this disposition, the parties agree to recommend a sentence of probation for a period of five years, which upon violation may include a fine of up to $2,500,000 with the following specific terms: (1) RPLwill, immediately upon sentencing, tender one or more cashier's checks to the United States Attomey's office for the District of Colorado payable to the personsivictims/heirs, recognizing these funds are designated as personal injury damages for tax purposes, in the amounts stated below: Victim/Decedent —_| Heif/Beneficiary Relationship | Amount Gary Foster Elizabeth Foster Wife $164,640.00 Don DeJaynes Carolynn DeJaynes | Wife $260,640.00 Dupree Holt Gladys Holt Wife $314,640.00 ‘Anthony Aguirre ‘Ortencia Aguirre Mother $164,640.00 James St Peters | Christopher St. Peters | Son $82,320.00 Tiffany St. Peters Daughter $82,320.00 Kenneth Shinn NIA $51,450.00